In the Interest of K.V., a Child State of North Dakota, Petitioner and Appellee
A.V., mother of said child; and E.D., father of said child, Respondents and K.V., said child, Respondent and Appellant
from the Juvenile Court of Ramsey County, Northeast Judicial
District, the Honorable Lonnie Olson, Judge.
H. Halbach, State's Attorney, Devils Lake, ND, for
petitioner and appellee.
C. Kraus-Parr, Grand Forks, ND, for respondents and
A.V., and E.D. are mother and father of K.V. They and K.V.
appeal from the juvenile court order finding K.V. committed
the delinquent acts of criminal trespass, fleeing or
attempting to elude a peace officer, and reckless driving.
They argue N.D.C.C. § 12.1-22-03(3)(b) is void for
vagueness and insufficient evidence supports finding K.V.
committed criminal trespass, fled or attempted to elude a
police officer, and drove recklessly. We affirm in part and
reverse in part.
On November 15, 2018, a juvenile petition was filed alleging
K.V. committed the delinquent acts of criminal trespass,
fleeing or attempting to elude a peace officer, and reckless
driving. An adjudication hearing was held on February 14,
2019, and the juvenile court found beyond a reasonable doubt
that K.V. committed all three allegations. K.V. and his
On June 16, 2018, Devils Lake Police Officer Myrum received a
call from the owner of Butler Machinery regarding a trespass
that occurred on June 13, 2018. At trial, Myrum testified he
viewed photographs showing a blue or gray Toyota pickup and a
red Chevrolet pickup on Butler's machine lot. He
identified the driver of the Toyota and interviewed him over
the telephone. The owner of the Toyota said he was driving on
the lot but did not notice the "no trespassing"
signs near the entrance. He also told Myrum that K.V. was
driving the Chevrolet. Myrum testified two large "no
trespassing" signs were posted by the lot entrance.
Devils Lake Officer Khalifa testified at trial she saw a
juvenile enter the driver's side of an older red
Chevrolet pickup. She identified the driver as K.V. based on
other officers who told her what he looked like, and from a
picture of K.V. She noticed the red pickup had a burned out
tail light on the driver's side and K.V. did not make a
complete stop at a stop sign. Khalifa contacted Officer
Johnson to stop the pickup because she was in an unmarked
vehicle. Johnson testified he received a call from Khalifa
stating a vehicle was northbound on Fifth Avenue Southeast
headed toward the downtown area. Johnson arrived at Sixth
Avenue, followed the vehicle and witnessed K.V. drive through
three stop signs. When he was about a block behind the
vehicle, Johnson testified he turned on his overhead lights
to stop the pickup. He heard the vehicle's engine rev and
saw it pick up speed. Johnson testified he estimated the
vehicle's speed at 60 to 65 miles an hour. He was unable
to complete the stop due to safety issues. In the juvenile
court's ruling the judge stated this series of events
happened in a residential area.
The juvenile court found beyond a reasonable doubt K.V.
committed the delinquent acts of criminal trespass, fleeing
or attempting to elude a peace officer, and reckless driving.
The appellants argue the trespass statute, N.D.C.C. §
12.1-22-03(3)(b), is void for vagueness.
"It is a well-established principle in this state that
issues not raised below cannot be raised on appeal.
'Generally, issues not raised in the trial court,
even constitutional issues, will not be addressed on
appeal.'" State v. Tweed, 491 N.W.2d 412,
417 (N.D. 1992) (quoting State v. Miller, 388 N.W.2d
522 (N.D. 1986)). The narrow exception to this principle is
that "obvious error or defect that affects substantial
rights may be considered even though it was not brought to
the court's attention." N.D.R.Crim.P. Rule 52(b).
"To establish obvious error, a defendant must show (1)
error, (2) that is plain, and (3) that affects substantial
rights." State v. Blurton, 2009 ND 144, ¶
8, 770 N.W.2d 231.
The appellants did not argue the obvious error exception and
therefore did not show a plain error exists that affects
substantial rights. Because the constitutional argument was
not raised in the juvenile court and K.V. has not argued
obvious error, ...